Judge Dismisses PlayStation 3 'Other OS' Removal Class Action Suit

A federal judge has dismissed all of the counts
brought against Sony in a class action suit over the disabling of
PlayStation 3's "Other OS" feature last year.

The feature was primarily used to install versions of the open source
Linux operating system on the console, allowing home users to tap into
the PlayStation 3 for homemade applications.

In April 2010, Sony released a PS3 firmware upgrade removing the console's Other OS functions as a response to hacker exploits enabling users to run unauthorized software and pirated games by using the feature.

California resident Anthony Ventura filed a class action suit against
Sony Computer Entertainment America several weeks later over what he
said was an "intentional disablement of the valuable functionalities
originally advertised as available" alongside other critical features
with the PS3.

The filing read: "The disablement is not only a breach of the sales
contract between Sony and its customers and a breach of the covenant of
good faith and fair dealing, but it is also an unfair and deceptive
business practice perpetrated on millions of unsuspecting consumers."

Ventura's class action included eight different claims, alleging breach
of express warranty, breach of implied warranty, violation of the
Magnuson-Moss Warranty Act, unjust enrichment, violation of the Unfair
Competition Law, conversion, and violation of the Computer Fraud and
Abuse Act.

SCEA submitted a motion to dismiss the case in September 2010, denying
the claims and arguing that the PS3's System Software License agreement
and PlayStation Network Terms of Service afforded the company the right
to alter the firmware however it sees fit.

"These contracts specifically provide PS3 purchasers with a license, not
an ownership interest, in the software and in the use of the PSN, and
provide that SCEA has the right to disable or alter software features or
terminate or limit access to the PSN, including by issuing firmware
updates," the company commented.

U.S. District judge Richard Seeborg dismissed all but one of the counts
-- violation of the Computer Fraud and Abuse Act (CFAA) -- brought
against SCEA in February 2011, and said the plaintiffs had not
sufficiently stated their claim.

He let the CFAA claim, which argued SCEA "intentionally caused damage
without authorization, to a protected computer" stand, finding the
company had not "conclusively established that disabling a PS3
capability of the nature of the Other OS feature is within the scope of
the license agreement provisions on which it relies."

Seeborg added that Sony had not "shown that those plaintiffs who
downloaded the Update thereby necessarily 'authorized' the removal of
the feature within the meaning of the statute." For the dismissed
counts, he allowed the plaintiffs a leave to amend their claims, which
they did soon after.

According to
Courthouse News Service, though, the judge said last week that the
plaintiffs failed to cure "the previously identified deficiencies" in
their amendments. He stated, "Because the facts alleged do not show
wrongdoing even under the CFAA, the motion [to dismiss] will be
granted."

Seeborg did not give the plaintiffs the option to amend their claims
again: "In light of the prior amendment, and the fundamental
shortcomings in plaintiffs' basic theory that it was wrongful for Sony
to release the software update in dispute, leave to amend will be
denied."

"[Almost] all of the counts are based on plaintiffs' fundamental
contention that it was wrongful for Sony to disable the Other OS
feature, or, more precisely, to [force PS3 owners to decide between]
permitting the Other OS feature to be disabled or forgoing their access
to the PSN and any other benefits available through installing" the
firmware.

Continuing his statement on SCEA's perceived obligations, he added, "The
flaw in plaintiffs' [argument] is that they are claiming rights not
only with respect to the features of the PS3 product, but also to have
ongoing access to an internet service offered by Sony, the PSN."

The judge argued that Other OS continues to work unless users choose to
disable it with the firmware upgrade, and PS3 owners who decided not to
install the update still have fully-functioning devices that can play
games and take advantage of Other OS features.

Seeborg concluded, "The dismay and frustration at least some PS3 owners
likely experienced when Sony made the decision to limit access to the
PSN service to those who were willing to disable the Other OS feature on
their machines was no doubt genuine and understandable."

"As a matter of providing customer satisfaction and building loyalty, it
may have been questionable. As a legal matter, however, plaintiffs have
failed to allege facts or to articulate a theory on which Sony may be
held liable." Seeborg will issue a separate judgment at a later date.

SCEA recently moved to stymie future class action lawsuits
with a controversial update to its PSN terms of service, which has a
"Binding Individual Arbitration" prohibiting users from filing or
entering class action suits regarding its online services without Sony's
approval.